Citation Nr: 1809201 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 11-11 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a separate evaluation for bladder impairment, claimed as urinary frequency and hesitancy. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1997 to August 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. By way of background, an April 2015 decision by the Board found, in pertinent part, that consideration of whether the Veteran's bladder impairment was a neurological abnormality of his service-connected lumbar disability was reasonably raised by the record. In August 2012, the Veteran appeared with his representative for a travel Board hearing before the undersigned. A transcript of that proceeding has been associated with the record. This matter was remanded by the Board in April 2015 and again in June 2017 for additional development. A review of the record since the June 2017 remand reflects substantial compliance with the directives of that remand. Stegall v. West, 11 Vet. App. 268 (1998). Lastly, the Board notes the issues of entitlement to service connection for left and right knee disability, respectively, are pending further development, i.e., a hearing, and will be adjudicated in a subsequent Board decision. FINDING OF FACT The Veteran's bladder impairment is not a neurological abnormality proximately due to or aggravated by his service-connected lumbar disability. CONCLUSION OF LAW The criteria for a separate disability rating for bladder impairment have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.14, 4.71a Diagnostic Code 5237, 4.115a (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA's duty to notify was satisfied by letters dated in October 2009 and October 2015. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017). The duty to assist the Veteran has also been satisfied in this case. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. II. Increased Rating, including separate ratings. Legal Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). The Veteran's lumbar disability is currently evaluated at 40 percent disabling under the General Rating Formula for Disease and Injuries of the Spine, Diagnostic Codes 5235-5243. Note (1) provides that any associated objective neurologic abnormalities, including bladder impairment, should be evaluated separately under an appropriate diagnostic code. Voiding dysfunction is to be rated based on urine leakage, urinary frequency, and/or obstructed voiding. 38 C.F.R. § 4.115a. A 20 percent rating is warranted where the evidence shows the condition requires the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent rating is warranted where the evidence shows the condition requires the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent rating is warranted where the evidence shows the condition requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times a day. Id. Urinary frequency is rated at maximum level of 40 percent with a daytime voiding interval of less than one hour, or awakening to void five or more times per night; at 20 percent with a daytime voiding interval between one and two hours, or awakening to void three to four times per night; and at 10 percent with a daytime voiding interval between two and three hours, or awakening to void two times per night. Obstructed voiding is assigned a compensable rating with requirement of catheterization, or urinary hesitancy, slowness, or weakness, and certain other manifestations. Id. Discussion Based on a review of the evidence, the Board finds that the Veteran is not entitled to a separate rating for his bladder impairment. In that regard, the Board notes it does not dispute the Veteran's previous contentions that he experiences urinary frequency and hesitancy. Indeed, medical treatment records dated between November 2000 and December 2017 are replete with complaints of urinary frequency and hesitancy. However, the evidence of record overwhelmingly reflects that the Veteran's bladder impairment is not related to his lumbar back disability. In particular, report of the August 2015 VA examination reflects, in pertinent part, diagnoses of hematuria and polyuria. The examiner noted voiding dysfunction with increased urinary frequency and requiring absorbent material which must be changed more than 4 times per day. The examiner indicated that the voiding dysfunction was from an unknown etiology, but concluded that it was likely a hyperactive bladder. The Veteran was provided with a new VA examination in August 2017. Report of the August 2017 VA examination reflects, in pertinent part, the Veteran's statements regarding urinary symptoms described as occasional urgency and leakage, which he attributed to his back. The examiner noted voiding dysfunction with increased urinary frequency and requiring absorbent material which must be changed 2 to 4 times per day. The examiner opined that the Veteran's bladder impairment was less likely than not proximately due to or aggravated by his service-connected lumbar disability. In doing so, the examiner noted the Veteran is currently diagnosed with spondylothesis of the lumbar back. He further noted that the medical evidence of record (including prior x-rays) did not reflect that the Veteran had spinal cord compression or spinal stenosis, which are spinal disorders that could cause bladder impairment. In the absence of these findings, the examiner concluded it was less likely than not the Veteran's urinary symptoms were related to his back. Additionally, the examiner noted the extensive medical treatment the Veteran had received from orthopedic and genitourinary specialists, including urologists, and highlighted that such records were also absent for any evidence associating the Veteran's bladder impairment to his lumbar disability. The Board acknowledges the medical abstract submitted by the Veteran in November 2016, wherein the author indicates that disabilities or injuries that cause nerve compression may cause neurogenic bladder disorder (NBD), i.e., bladder dysfunction. However, the author then limited his discussion to specific nerve(s) that enable bladder sensation and function. Not at any point during the discussion did the author discuss the sciatic nerve. Additionally, he identified one of the spinal disorders with potential to cause NBD as spinal stenosis. As addressed by the August 2017 VA examiner, the Veteran does not have spinal stenosis. The Board has also considered the Veteran's statements, including that his bladder impairment is related to his service-connected lumbar disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, questions of medical causation fall outside the realm of common knowledge of a lay person. See Jandreau, supra (lay persons not competent to diagnose cancer). In this case, the cause of the Veteran's bladder impairment is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of medical causation, the Board finds his statements are not competent lay evidence. Notwithstanding, the probative medical evidence outweighs the lay statements. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to a separate rating for bladder impairment. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for entitlement, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (Continued on the next page) ORDER Entitlement to a separate evaluation for bladder impairment, claimed as urinary frequency and hesitancy, is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs